In 2006, the OIG issued guidelines on how it would determine whether a State’s false claims act (FCA) meets the requirements of Section 1909 of the Social Security, which creates a financial incentive for States to enact legislation that establishes liability to the State for false or fraudulent claims to the State Medicaid program. Qualifying States receive an additional 10 percent of the recovery in Medicaid fraud actions.

The OIG updated those guidelines effective March 15, 2013 to reflect the 2009 and 2010 amendments to the federal FCA and to provide greater specificity regarding OIG’s reviews when evaluating whether a State’s FCA qualifies for the additional 10% recovery. The OIG must determine, in consultation with the U.S. Attorney General, whether a State’s FCA:

1. establishes liability to the State for false or fraudulent claims relating to Medicaid program expenditures;2. contains provisions that are at least as effective in rewarding and facilitating qui tam actions for false or fraudulent claims as those described in the federal FCA;3. contains a requirement for filing an action under seal for 60 days with review by the State Attorney General; and4. imposes a civil penalty that is not less than the amount of the civil penalty authorized under the federal FCA.

The updated guidelines detail what the OIG will consider when determining whether a State’s FCA meets the above requirements, including how the State’s statute defines certain terms, the procedural rights it grants to relators, the protections it affords to employees who act in furtherance of an FCA action or in an effort to stop FCA violations, and the jurisdictional bars imposed.